LKA 2/2013 - Office of the High Commissioner for Human Rights

NATIONS UNIESHAUT COMMISSARIAT DES NATIONS UNIESAUX DROITS DE L’HOMMEPROCEDURES SPECIALES DUCONSEIL DES DROITS DE L’HOMMEUNITED NATIONSOFFICE OF THE UNITED NATIONSHIGH COMMISSIONER FOR HUMAN RIGHTSSPECIAL PROCEDURES OF THEHUMAN RIGHTS COUNCILMandates of the Special Rapporteur on extrajudicial, summary or arbitrary executions and theSpecial Rapporteur on torture and other cruel, inhuman or degrading treatment or punishmentREFERENCE: AL G/SO 214 (33-27) G/SO 214 (53-24)LKA 2/2013Excellency,7 March 2013We have the honour to address you in our capacities as Special Rapporteur onextrajudicial, summary or arbitrary executions and Special Rapporteur on torture andother cruel, inhuman or degrading treatment or punishment pursuant to Human RightsCouncil resolution 17/5 and 16/23.In this connection, we would like to bring to your Excellency’s Government’sattention information we have received concerning the deaths in custody of Messrs.Koggala Marakkalage Thushara Samanthilake, M.D. Kalum Priyanath, andChandrasiri Dasanayaka.According to information received:Mr. Koggala Marakkalage Thushara Samanthilake, aged 37, on 16 August 2012,at approximately 17h00, left his house in Ranna, Hambantota District, to go toHungama Town. When he had not returned by 19h30 his wife went to search forhim. She was informed that he had been arrested by police and taken to RannaGovernment Hospital due to head injuries sustained. At approximately 21h00 thatnight, the police reportedly visited Mr. Samanthilake`s wife and informed her thatMr. Samanthilake had been arrested for drug possession and whilst beingtransported to the Hungama Police Station he jumped out of the moving vehicleand injured his head. However, it is alleged that his injuries were caused byassaults carried out by the police. On 20 August 2012, Mr. Samanthilake died atthe Karapitiya Teaching Hospital Intensive Care Unit. It is alleged that witnessesto the event may be too afraid to come forward as they fear reprisals from thepolice, who were the alleged perpetrators in this matter.Mr. M.D. Kalum Priyanath, aged 31, at approximately 12h00 on 20 May 2012was returning to his house in Welikanda, Polonnaruwa District from KadawathaMagaduwa Temple when he was reportedly arrested for possession of marijuana.At 13h00 Mr. Priyanath was found dead in the cell where he was detained. It was

alleged by the police that he fell and consequently injured his head, which causedhis death. The police allegedly falsified a statement by the sister of Mr. Priyanathwhich confirmed their version of events. It is alleged that one of the policeofficers at the relevant police station has harassed Mr. Priyanath on prioroccasions. According to the report of the Judicial Medical Officer, Mr. Priyanathsustained several contusions, swelling and severe bleeding on the back of hishead. It is alleged that the lethal injuries were sustained due to police beating.Mr. Chandrasiri Dasanayaka, on 15 April 2012 at approximately 04h45, left hishouse in Wadduwa, Kalutara District to go to his place of business in Thalpitiya inWadduwa. At approximately 05h00, he was reportedly arrested by a team ofpolice and taken to the Wadduwa Police Station allegedly for suspicion ofpossession of two cannabis cigars. It is further reported that Mr. Dasanayaka`s sonwent to the police station where his father was detained and saw his father hadsustained injuries on his face which were bleeding. When Mr. Dasanayaka`s sonreturned to the station later that day, he was informed that Mr. Dasanayaka hadbeen admitted to the Panadura Base Hospital. However, when Mr. Dasanayaka`sson arrived at the hospital, he was informed that Mr. Dasanayaka had beendeclared dead on arrival. The police alleged that Mr. Dasanayaka had fainted inthe police cell and died upon arrival at the hospital. Mr. Dasanayaka was allegedlya key witness in a case against the Officer-in-Charge at the Wadduwa PoliceStation.While we do not wish to prejudge the accuracy of the information provided to us,we would like to bring to the attention of your Excellency’s Government our concernsrelating to the deaths in custody of Messrs. Koggala Marakkalage ThusharaSamanthilake, M.D. Kalum Priyanath, and Chandrasiri Dasanayaka and what appear tobe the same pattern of deaths that occurr after these persons were arrested for allegeddrug offences and subsequently died whilst in custody.We would further like to recall the relevant international human rights obligationsthat your Excellency’s Government has undertaken. The International Covenant on Civiland Political Rights (ICCPR), acceded to by your Excellency’s Government on 11 June1980, provides that every individual has the right to life and security of the person, thatthis right shall be protected by law, and that no person shall be arbitrarily deprived of hisor her life (article 6). When the State detains an individual, it is held to a heightened levelof diligence in protecting that individual’s rights. When an individual dies as aconsequence of injuries sustained while in State custody, there is a presumption of Stateresponsibility. In this respect we would like to recall the conclusion of the Human RightsCommittee in a custodial death case (Dermit Barbato v. Uruguay, communication no.84/1981 (21/10/1982), paragraph 9.2): “While the Committee cannot arrive at a definiteconclusion as to whether Hugo Dermit committed suicide, was driven to suicide or waskilled by others while in custody; yet, the inescapable conclusion is that in all thecircumstances the Uruguayan authorities either by act or by omission were responsiblefor not taking adequate measures to protect his life, as required by article 6 (1) of theCovenant.”2

In order to overcome the presumption of State responsibility for a death resultingfrom injuries sustained in custody, there must be a “thorough, prompt and impartialinvestigation of all suspected cases of extra-legal, arbitrary and summary executions,including cases where complaints by relatives or other reliable reports suggest unnaturaldeath in the above circumstances” (principle 9 of the Principles on the EffectivePrevention and Investigation of Extra-legal, Arbitrary and Summary Executions).These obligations to investigate, identify those responsible and bring them tojustice arise also under articles 7 and 12 of the Convention against Torture and OtherCruel, Inhuman or Degrading Treatment or Punishment, which your Excellency’sGovernment acceded on 3 January 1994.We urge your Excellency’s Government to carry out an expeditious, independentand transparent inquiry into the circumstances surrounding the death of the abovementionedperson, also with a view to taking all appropriate disciplinary andprosecutorial action and ensuring accountability of any person guilty of the allegedviolations, as well as to compensate his family. In this respect we note that Human RightsCouncil Resolution 16/23, paragraph 7(b), urges States to hold responsible not only thosewho perpetrate torture, but also those “who encourage, order, tolerate or perpetrate suchacts [...], to have them brought to justice and punished in a manner commensurate withthe gravity of the offence, including the officials in charge of the place of detention wherethe prohibited act is found to have been committed.”Moreover, it is our responsibility under the mandates provided to us by the HumanRights Council, to seek to clarify all cases brought to our attention. Since we are expectedto report on these cases to the Human Rights Council, we would be grateful for yourcooperation and your observations on the following matters:1. Are the facts alleged in the case summary accurate?2. Please provide the details, and where available the results, of theinvestigations, and judicial or other inquiries carried out in relation to these cases.If no inquiries have taken place, or if they have been inconclusive, please explainwhy.3. Please provide the details of any criminal prosecutions and/or disciplinarymeasures in relation to persons found to be responsible for the deaths in custodyof Messrs. Koggala Marakkalage Thushara Samanthilake, M.D. Kalum Priyanath,and Chandrasiri Dasanayaka4. Please indicate whether compensation has been paid to the families ordependants, if any, of Messrs. Koggala Marakkalage Thushara Samanthilake,M.D. Kalum Priyanath, and Chandrasiri Dasanayaka.3

We would appreciate a response within sixty days. Your Excellency’sGovernment’s response will be made available in a report to the Human Rights Councilfor its consideration.While waiting for your response, we urge your Excellency’s Government to takeall necessary measures to guarantee that in the event that your investigations support orsuggest the above allegations to be correct, the accountability of any person responsibleof the alleged violations should be ensured. We also request that your Excellency’sGovernment adopt effective measures to prevent the recurrence of these acts.Please accept, Excellency, the assurances of our highest consideration.Christof HeynsSpecial Rapporteur on extrajudicial, summary or arbitrary executionsJuan E. MéndezSpecial Rapporteur on torture and other cruel, inhuman or degradingtreatment or punishment4